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Bench Memos

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Lithwick’s Fallacious Musings



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Yesterday, Slate legal guru Dahlia Lithwick expended a great deal of colorful rhetoric building straw dogs to smite with her trenchant wit while fundamentally misstating the grounds upon which we believe Kagan’s recusal is in order.

I believe she is too smart to have really failed to grasp our argument. Her repeated use of the phrase “seems to be” — as though our legal arguments were somehow fuzzy to her — is a tad bit precious, but I will play along and take the opportunity to summarize them again in simpler terms:

Federal law requires a judge who previously participated as counsel for the government in a case to recuse herself.  By involving the solicitor general’s office in Obamacare-defense strategizing, by hand-picking her political deputy to manage the issue for her office, and by receiving internal, privileged information regarding defense strategy, Justice Kagan participated as counsel and therefore cannot sit on the case as a judge.  

Lithwick argues that the e-mails showing Kagan exultant at the passage of Obamacare are the key to arguments for her recusal. Not so — they weren’t disclosed until the day our white paper was released and are irrelevant to that analysis. Lithwick also suggests that we fault Kagan for doing her job as SG. Wrong again: We are simply saying that her previous work has forced her recusal in over 30 cases so far, and this is another in which it should have the same effect. And Kagan’s efforts to distance herself from the case? Too little, too late. To continue my analogy of Kagan to a coach who wants to switch mid-first-quarter to start refereeing the same game, Lithwick would argue “But the offensive coordinator was the one calling all the plays anyway!”

Her attacks on Justices Thomas and Scalia are unworthy of her. Let me rephrase them in Dahlia-speak: “Thomas and Scalia spoke at a Federalist Society dinner (sound of Jaws shark music). But wait! (alarm bells) A successful conservative businessman (eery “bwaaaaah”) also supports that organization and has opinions about issues that may someday come before the Court. Gotcha. J’accuse! Recuse!”

Lithwick spends a lot of time talking about the Code of Judicial Conduct, though she concedes it does not apply to Supreme Court justices. She makes no mention of the federal statute that does apply, and on which the calls for Kagan’s recusal are based. And she compares what she considers an “appearance of impropriety” in Scalia and Thomas, involving attendance at events outside the four walls of the Court building, with the appearance of impropriety from then–Solicitor General Kagan, involving her job. This is a false comparison. In fact, the appearance of impropriety for Kagan (if that were even the relevant standard) is the impropriety of her sitting as judge on the same case she participated in as a lawyer.

To borrow from the old legal maxim, Lithwick’s column amounts to little more than pounding the table. But it is nice to know she is paying attention.



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